Wellinger v. Crawford

Rabb, J. 1. This was an action by appellee to recover a commission, as a real estate agent, for services rendered in finding a purchaser for real estate belonging to appellants, and based upon an alleged written contract between the parties. The only question presented by the record arises upon the action of the court in overruling appellants’ demurrer to the third paragraph of appellee’s complaint. The contract, which is the basis of appellants’ action, is as follows: “This is to certify that we, Amelia Wellinger and Joseph Wellinger, her- husband, of Clark county, Indiana, do hereby agree and bind ourselves to sell and convey to Thomas F. Crawford, of Clark county, Indiana, for and in consideration of the sum of $5,000, the following real estate, in Claris county, Indiana, to wit: Being the real estate conveyed by the Coombs heirs to Amelia Wellinger, by deed bearing date of the-day of-, and which deed is found of record in deed record-, at page-, of the deed records of Clark county, Indiana, and for a more particular description of said real estate reference is to be made to said deed record. Said Amelia Wellinger and Joseph Wellinger, her husband, hereby agree and bind themselves to execute and deliver to said Thomas F. Crawford a warranty deed to said real estate, and the parties to execute said deed to any person that said Crawford shall authorize and direct, upon tender and payment to the Wellingers by said Crawford of $5,000, provided that should said Crawford fail to pay said Wellingers the sum of $5,000 until after the expiration of January 1, 1906, then this writing and obligation shall be void, and said parties shall no longer be obligated to execute said deed. It is further agreed that said Amelia Wellinger shall pay said Thomas F. Crawford a commission of five per cent of the purchase price for the sale of said real estate. Amelia Wellinger. Joseph Wellinger.” It is averred in the complaint that after the contract was entered into appellee was unable to find a purchaser willing to pay $5,000 for the premises, and that after appellants re [175] eeived information from, appellee that he was unable to find a purchaser for the premises at the price named, appellants agreed to waive the provision in said contract that the lands should be sold for $5,000, and agreed to accept $4,500 therefor, and to pay plaintiff five per cent of that amount as commission for making the sale, as provided in the contract, and agreed to carry out the terms of the contract, as modified to that extent; that immediately thereafter, and prior to the time fixed in the agreement for the expiration thereof, appellants sold the real estate to a purchaser, procured by appellee, for the sum of $4,500. Section one of the act of 1901 (Acts 1901 p. 104, §7463 Burns 1908) provides that no contract for the payment of money as a commission for finding or procuring a purchaser for real estate shall be valid unless it is in writing, and is signed by the owner of the real estate. This act is supplemental to the statute of frauds, and should be construed accordingly. The contract sued on is an executory contract for the sale of land at a stipulated price by the appellants to the appellee. The only stipulation in the contract under which appellee could claim any right to a commission is the clause providing that “Amelia Wagner shall pay said Thomas F. Crawford a commission of five per cent of the purchase price for the sale of said real estate.” This clause must be construed in connection with all the other provisions of the contract, and, so construed, the agreement to pay a commission for the sale of the real estate must be held to refer to the complete execution of the executory contract, and the payment to appellants of the contract price of $5,000. The consideration for which the land was to be sold was a material part of the contract, and a change in the terms of the contract, by which the parties agreed to sell for a different consideration, was such a material variance from the contract as written that no action would lie upon such altered contract, unless the alteration was evidenced by a [176] writing signed by the parties sought to be charged. Carpenter v. Galloway (1881), 73 Ind. 418; Lowe v. Turpie (1897), 147 Ind. 652, 681, 37 L. R. A. 233; Sprankle v. Truelove (1899), 22 Ind. App. 577; Bradley v. Harter (1901), 156 Ind. 499. Here, the third paragraph of complaint does not aver the performance by appellee of the contract, as it was made, but does aver that a materially different contract was orally entered into, and a recovery is sought upon this oral agreement. The demurrer should have been sustained. Judgment reversed, with instructions to the court below to sustain appellants’ demurrer to the third paragraph of complaint. Watson, J., did not take any part in the consideration of this case.